Sunday, June 25, 2006

LADY IN THE DARK or Contempt of CourtA mystery for the clueless

If you heard her on Diane Rehm's show last Friday it seems Sandra Day O'Connor just doesn't see where the attacks of the courts come from. Well, Sandy baby, did you miss that the most vicious attacks are coming from Republicans, members of your own party, from your own region? You don't notice that the Bush regime you installed has done some of the worst damage to the court's reputation, that the little king isn't satisfied with the sweeping powers you've given him? I thought you were supposed to be smart.

O'Connor's appearance on the show was so witless you wonder why she bothered.

Let's handle the worst, first. The unmentionable ordure in the court was Bush v. Gore, an action unprecedented and baldly partisan. O'Connor has been widely quoted on election night 2000 as having expressed dismay over Gore being declared the winner before the cabloids triggered the putsch. Her part as one of the Bush Five leaves me in no doubt that she acted as a Republican to crown a Republican who lost the election. Since their actions usurp the will of the majority of Voters in that election, coronation is the only word for it. Everything about Bush v. Gore stinks from its beginnings in Jeb's dukedom onward. Much as the allegedly non-binding ruling attempts to pretend, it is a decision that changed us permanently. If there is any justice in history the Bush Five will have written that as their own epitaphs. I'm never going to let it go unsaid.

The empty praise of O'Connor during the Alito hearings was not derserved by her record. From civil rights to non-establishment* to the most infamous coronation mentioned above, she usually acted as a Republican tool whose only virtue was that she felt it necessary to cover her acts with weasel words. Many of her celebrated fence sittings didn't drive progress back as far as Thomas would have but they tended to turn it back. Her absurd opinion in the execution of minors, mentioned by her on air, is an example. She didn't agree with the flat ban because she thought that seventeen-year-olds should be eligible to be killed, or was it sixteen-year-olds too? Only on issues of women's rights, something she had experienced personally, is her record sort of good. Conservatives can't see much past themselves. History will say that she was the first woman on the Court but that doesn't put her beside Marshall and Brandeis. She belongs in a bin closer to Taney.

For most of the past sixty years the Supreme Court could depend on the respect of liberals, who tend towards the law abiding to begin with. The Warren Court and its courageous decisions finally upholding the rights of black people and others and taking due process seriously built up an enormous reservoir of good will for the courts. But that has been emptied by those after him. Today the show of respect for the court from the left is based on habit and unthinking etiquette, not on the honesty or integrity of the rulings by the ascendant majority or the lower courts. And a lot of us are breaking lifetime habits in the face of the most partisan courts we've known. I don't respect a court like the one we have today, I won't defend it against attacks from their own side. If they don't like the rudeness and threats from the right, they've made their bed.

* It's interesting that those wanting to insert the Ten Commandments into our law don't rail against her and Rehnquist's opinions on church-state matters. Both of them clearly called for the pro-forma mention of God as a part of what they absurdly promote as "civic religion". If that isn't taking the Lord's name in vain, the Commandment itself has no meaning. It would be interesting to see what other Supreme Court rulings, outside of death penalty issues, openly call for the violation of Commandments as an act of the state. I can't think of any. If their "civic religion" isn't an establishment of religion, that phrase is meaningless too.

Let's say they haven't been doing much to earn our respect lately. I do stand by the point about the left getting into the habit of depending on the court during the Warren period, they were the most rational and least corrupt branch back then. But that's been ever less true for the past quarter century. The one we're about to get is going to make congress look rational and honest.